Barnstable Superior Court, May 1767

Cotton vs. Nye

4. Bac. 485. “All Words are actionable which import the Charge of such a Forgery,
as is within any of the statutes against this offence.”2

“An action also lies for charging a Man with Forgery, although it is not said to be
of such a Record, Deed, Writing, or Instrument as is within any of the statutes; for
Forgery is an offence indictable and punishable at common Law.”3

“But no Action lies for saying of J.S. he hath forged the Hand of J.N., these Words
being too general; for unless it had been said to what Deed or Instrument, this is
no offence under any of the statutes or at Common Law.”4

3. Leonard. 231. Hill. 31. Eliz.9 “An Action upon the Case was brought for these Words vizt. Thou hast forged my Hand:
It was holden by Gawdy and Wray Justices that such Words are not actionable, because
too general, without shewing to what Writing. And by Wray, these Words Scil. Thou
art a Forger, are not actionable because it is not to what Thing he was a Forger.
Godfrey, Between Warner and Cropwell Scil. She went about to kill me; an Action lyeth
for them: for if they were true, she should be bounden to the good Behaviour.

“And by Gawdy, for these Words scil. 'Thou hast forged a Writing': { 146 } They are not actionable because they are uncertain Words; which Wray concessitt:10 But if the Declaration had been more certain, as “innuendo,11 such a Deed,” then it had been good enough.

“Fuller, a Case was betwixt Brook and Doughty, Scil.; He hath Counterfeited my Lord
of Leicesters Hand unto a Letter against the Bishop of London; for the which he was
committed to the Marshalsea for it. And it was holden, not Actionable. And afterwards
in the principal Case, Judgment was, Nihil capiat Per Billam.”12

Hawk. P.C. 1st. Part. chap. 70. Page. 184. §8. “and first it is clear, that one may
be guilty thereof by the Common Law, by counterfeiting a matter of Record.” §9. “any
other authentic matter of a public Nature,” &c.13

§11. “As to other Writings of an inferiour Nature, [ . . . ] the Counterfeiting them is not [properly] forgery,” rather Cheats.14

11. “Meaning.” The innuendo was that part of a declaration for libel or slander which
explained or pointed out the defamatory nature of the words. Here Gawdy was noting
that not all forgeries were crimes (as forgery of a deed was), and that therefore
an imputation of an undifferentiated forgery would not be actionable.

12. “He takes nothing by his writ.” That is, judgment for the defendant. Quotation marks
supplied.

16. 1 Hawkins, Pleas of the Crown 188: “Offenses of this kind by statute depend upon 33 Hen. VIII c. 1 [(1541)] by
which it is enacted, 'That if any person or persons shall falsely and deceitfully
obtain or get into his or their hands or possession, any money, goods, chattels, jewels,
or other things of any person or persons, by colour and means of any privy fake token,
or counterfeit letter made in another man's name,'” he or they shall upon conviction
be liable to suffer imprisonment or any corporal punishment other than death.

19. “No action lies for these words, because it is completely uncertain which writings
he meant by the first words; for peradventure he meant some writings the forgery of
which would not cost one the loss of his ears; and thus the last words would not disclose
his intent, so that perhaps it would be a wrong conclusion in the circumstances.”
1 Rolle, Abridgment 66. Quotation marks supplied.

20. “If a man says to J.S. ... an action lies, for it is not material by what means the
acquittance came, for such a forgery is within the statute.” 1 Rolle, Abridgment 66. Quotation marks supplied. The statute referred to is 5 Eliz., c. 14 (1562), “An
Act Against Forgers of False Deeds and Writings,” especially §3.

22. “If A says ... (meaning &c.) B shall not have any action for these words because the
word 'warrant' is of uncertain sense and the innuendo will not aid it.” 1 Rolle, Abridgment 66. Quotation marks supplied.

23. Sheppard, Actions upon the Case for Slander. The two following paragraphs appear at p. 166 of this treatise.